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It was May 10, 1994, the night before a Miami-Dade Circuit Court jury was to deliver a verdict in a lawsuit brought by five Florida agricultural growers against DuPont Co. The plaintiffs were alleging that the Wilmington, Del.-based chemical giant sold them a contaminated fungicide that had wiped out their crops. Earlier in the week, DuPont had ripped apart the growers’ case. Observers expected the jury, weary from the six-month trial, to find in favor of DuPont. Fearing a loss, the plaintiffs’ lawyers — Louis Vendittelli and Phillip Sheehe of Sheehe & Vendittelli in Miami, Karl Hart of Simmons and Hart in Miami, and Robert J. McKee of Krupnick Campbell Malone Roselli Buser Slama & Hancock in Fort Lauderdale, Fla. — took one last shot that night at settling the case. Four of the growers agreed to a deal. But Dale and Carolyn Smith, owners of Native Hammock Nursery in Homestead, Fla., decided to take their chances with the jury, turning down a $1 million settlement offer. The Smiths believed their case was worth about $7 million, but told their lawyers that they’d be willing to take $2.4 million — and not a dollar less. They lost the gamble. The jury returned a verdict in favor of DuPont. The case is on appeal. But the Smiths now say they would have accepted the $1 million settlement if they had known the full story of their lawyers’ behind-the-scenes maneuvering. And they accuse the lawyers of cheating them out of the money. The lawyers deny the Smiths’ allegations. The couple says damning evidence that their lawyers betrayed them came to light during another Benlate case involving a friend. So they filed suit in Miami-Dade Circuit Court in 1999 against their lawyers and their firms alleging fraud and violation of fiduciary duty. TWIST IN BENLATE TRAIL The Smiths’ allegations are the latest twist in a decade of litigation over the use of the fungicide Benlate, which was alleged to have caused widespread damage to crops and ornamental trees before DuPont pulled it from the market in 1991. While DuPont has continued to deny that its product was the cause of any damage, it also has paid out about $1 billion in settlements and jury verdicts. Another 100-plus suits are pending. A lawyer for the Smiths’ former attorneys says he believes that the original attorney who filed the fraud suit against his clients, Roland St. Louis, had ulterior motives in bringing the action. By filing the suit, St. Louis was hoping to gather information that would help clear him of similar allegations that he betrayed his clients in another Benlate lawsuit, says Gerald Wald, a partner at Murai Wald Biondo & Moreno in Miami. Next month, the defendants are expected to ask Circuit Judge Thomas “Tam” Wilson Jr. to either stay the Smiths’ fraud suit pending the outcome of the appeal in their Benlate liability case against DuPont, or dismiss it. In their motion, they argue that should this fraud case proceed, it could adversely impact the Smiths’ liability case against DuPont because they would be forced to divulge privileged attorney-client information. And because the Smiths refused to accept the $1 million settlement offer, Wald argues, they could not claim to have suffered any damage. SECOND SHOT AT THE POT? On the same night the Smiths rejected the $1 million settlement, Vendittelli sent a letter to DuPont’s legal counsel, Jerry Ashby in Wilmington, confirming a settlement agreement between DuPont and four of the growers — but not the Smiths. The letter contained the stipulation that if the Smiths changed their minds before the jury reached a verdict, they would receive $1 million, to be “deducted from the gross settlement.” But if the Smiths rejected the offer before the verdict, the letter said, there would be no deduction. Wald, who represents both Sheehe & Vendittelli and Simmons and Hart, contends that there was no separate $1 million check from DuPont set aside for the Smiths. Instead, if the Smiths had accepted the offer, the money would have come out of the lawyers’ fees from the total settlement. The plaintiffs’ lawyers had the discretion to pay the Smiths out of their legal fees, Wald says. “Let’s say the attorneys were to get $10 million in legal fees,” Wald explains. “If the Smiths agreed to take the $1 million, then the lawyers would have gotten $9 million. These attorneys were trying to protect a client [the Smiths] who had gone through a lot and who had made a decision against their better advice. Yet they kept open an option for them. For this they are getting it in the neck.” The Smiths, who now live in Crystal River in Central Florida and who no longer are in the nursery and landscaping business, accuse their former lawyers of fraud and of violating their fiduciary duties. “If they had told us the next day they had received the $1 million after the jury came out against us, we would have taken it,” says Dale Smith. “It’s a lawyer’s obligation to tell their client what they receive from the enemy.” Though the Smiths now contend that they are entitled to the $1 million, Wald says that once the Smiths rejected the settlement offer, all bets were off. “Once you put the silver dollar into the gambling machine, you can’t take it back,” he says. UNLAWFUL AGREEMENT ALLEGED The Smiths’ suit also accuses the lawyers of structuring the settlement in an unlawful way. It says the lawyers accepted an “aggregate settlement” on behalf of their clients, and, at their own discretion, divvied up the money among the growers. Florida Bar rules prohibit aggregate settlements. The Smiths’ current lawyer, Omar Arcia, an associate at Wilson Suarez & Lopez in Miami, says the settlement confirmation letter that Vendittelli sent to DuPont’s lawyer is a “smoking gun” which proves that the settlement took the unlawful aggregate form. The letter “clearly contemplates a lump-sum settlement paid to Sheehe & Vendittelli, to be distributed among the clients” at their discretion, Arcia says. Wald denies the existence of any aggregate settlement. “We had not only individual authorizations but individual letter agreements,” Wald says. “The lawyers didn’t have discretion over how much [the growers] got. DuPont cut individual checks.” SECRET PAYMENT Ironically, the lawyer who initially filed the Smiths’ suit against their lawyers was Roland St. Louis. The Miami lawyer is being sued in Alachua Circuit Court in Gainesville, Fla., by former clients who allege he and his former colleagues at the Miami firm Friedman Rodriquez Ferraro & St. Louis hid from them a secret settlement deal the attorneys struck with DuPont. In return for a payment of $6.4 million to the firm, Friedman Rodriguez, which since has gone out of business, agreed not to file any more litigation against DuPont. The deal also included a provision that DuPont would retain the law firm for Benlate-related work in the future. The law firm justified the payment as compensation for lost future business. Last week, an Alachua Circuit Court judge ordered St. Louis and his former colleagues to tell their one-time clients, who now are suing them for malpractice, where the $6.4 million went. Meanwhile, there is talk that the Florida Bar is investigating the lawyers’ conduct, though Bar officials won’t comment. MOTIVES QUESTIONED Last October, Judge Wilson dismissed St. Louis from the Smiths’ suit against the lawyers on the grounds that St. Louis’ own agreement with DuPont created a conflict of interest. Wilson also said that there seemed to be “a great parallel” between St. Louis’ conduct and the allegations the Smiths were making against their lawyers. Wald contends that St. Louis had ulterior motives in representing the Smiths. By filing the suit, he says, St. Louis effectively got the Smiths to waive their attorney-client privilege with their Benlate lawyers. This allowed St. Louis to take depositions and discover whether DuPont had cut a deal with Sheehe & Vendittelli similar to the agreement the company had signed with St. Louis’ firm. If St. Louis could gather evidence that DuPont had engaged in a pattern of initiating such deals with plaintiffs’ lawyers bringing Benlate suits, Wald says, that could help extricate him in the Gainesville malpractice suit. “This was autobiographical as to Mr. St. Louis and fictional as to our client,” Wald said. During the hearing last October in which he dismissed St. Louis from the Smith case, Judge Wilson also alluded to this possibility. “I would think your focus is more on vindicating yourself in Gainesville than it would be on possibly assisting your client,” he told St. Louis. The St. Louis firm’s agreement with DuPont also included the type of aggregate settlement that the Smiths contend was unlawful in their lawyers’ deal with the chemical giant. “Where did he get this idea of … an aggregate settlement?” Wald asks. “[It was] his own prior conduct.” Wald further contends that St. Louis irreparably damaged the Smiths’ liability suit against DuPont by causing the disclosure of information that could hurt the Smiths’ credibility. QUESTION OF TRUST St. Louis defends the $6.4 million deal he and his colleagues reached with DuPont. If his law firm hadn’t accepted it, St. Louis insists, DuPont would not have agreed to pay his clients $59 million in a settlement. “[DuPont] said we had to agree to be retained,” he says. “Unless we agreed to it, none of the clients got anything.” But Wald says the Smiths were pawns in St. Louis’ battle to save his own skin. “There was an agenda here,” he says. “It was the agenda of a lawyer who has substantial problems. In a way, I feel badly for the Smiths.” Dale Smith, however, doesn’t see himself as anyone’s victim. He says he knows about St. Louis’ alleged misdeeds in the Gainesville case saying, “If Roland [St. Louis] had thought he did something wrong in the other case, he wouldn’t have taken my case. “Mr. St. Louis has done nothing but behave in good faith all along,” Smith says. “To our knowledge he has never lied, cheated or manipulated us.”

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